Modhej & Anor, R (On the Applications) v Secretary of State for Justice

This is an appeal against the decision of the Divisional Court (Sir John Thomas, President of the Queen’s Bench Division, Davis and Treacy JJs) dated 16 August 2011 dismissing the claim by the appellants Daniel Modhej and Scott Smith for judicial review that their continuing detention, in the case of Modhej after 21 September 2011, and in the case Smith after 25 November 2011, would be unlawful.

Modhej was born in February 1989 and Smith in November 1990. On 17 June 2007 they violently raped a prostitute who had been lured to their flat, falsely imprisoned her, threatened to kill her and robbed her. On 3 December 2007 at Inner London Crown Court they were convicted of these offences. On 11 January 2008 they were sentenced on the basis that they were dangerous offenders for the purposes of ss.224-229 of the Criminal Justice Act 2003 (the 2003 Act). Smith was sentenced to detention for public protection and Modhej to imprisonment for public protection, the difference in the form of sentence reflective of their ages. For both a minimum term of 4 years less time spent on remand was ordered.

Following sentence, they appealed to the Court of Appeal Criminal Division (the Court of Appeal) on the basis that the finding that they were dangerous was wrong; alternatively, if this finding was justified, that the appropriate sentence was an extended rather than an indeterminate sentence. While awaiting the hearing of their appeals, on 14 July 2008 the Criminal Justice and Immigration Act 2008 (the 2008 Act) came into force. Significant changes to the dangerous offender provisions in the 2003 Act were introduced, and these changes give rise to the present proceedings.

On 14 January 2010 the Court of Appeal upheld the finding of dangerousness, but decided that the appropriate means of providing protection for the public was an extended sentence of imprisonment rather than detention or imprisonment for public protection and allowed the appeals against sentence. The judgment of the court concluded:

“… what we propose to do is that in each case we shall quash the sentences of detention for public protection in relation to the counts of rape and we shall substitute for them extended sentences of detention in a young offenders’ institution. In each case we fix the appropriate custodial term at 8 years, with an extension period of 4 years … What that means is that in each case they will be entitled to release when they have served 4 years, including the time spent on remand, whereupon the licence period will commence, …”

The remaining orders in the Crown Court were undisturbed.

The problem is readily identified. If the appellants’ continued detention were subject to the provisions of the 2003 Act as originally enacted, their release after serving half the appropriate custodial term was dependent on the Parole Board being satisfied that their continuing detention was no longer necessary for the purposes of public protection. If, on the other hand, the provisions of the 2008 Act applied to them, they were entitled to automatic release on licence after completing one half of the custodial term without reference to the Parole Board. The Secretary of State for Justice has proceeded on the basis that the release of the appellants depends on the provisions of the 2003 Act whereas they contend that the amendments brought about by s.25 of the 2008 Act should apply to them. If so they would have been released in late 2011: as it is, the Parole Board has not given the necessary direction and they remain in custody. The Divisional Court concluded that their release was subject to the 2003 Act. On appeal, Mr Adam Straw submitted that this conclusion was wrong, essentially advancing the submissions rejected by the Divisional Court by Mr Hugh Southey QC.

The immediate difficulty facing the appellants arises from the Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional and Saving Provisions (Order) 2008) this provided that:

“The coming into force of sections 13 to 18 and 25 of schedule 5 and paragraph 71 of schedule 26(2), the 2008 Act (and the related entries in schedule 28(Repeals) to that Act) is of no effect in relation to any person sentenced under any of sections 225, 226, 227 or 228 of the 2003 Act before 14 July 2008.”

This provision is self explanatory: if the appellants were sentenced under the relevant provision of the 2003 Act, the application for judicial review, and these appeals fail. That is the contention for the Crown. Undaunted by the difficulties posed by the Commencement Order, the submission advanced on behalf of the appellants is simple. The Court of Appeal, not the Crown Court, imposed sentence on the appellants and accordingly, as this occurred after 14 July 2008, their release was governed by the provisions of the 2008 Act. To sustain this argument our attention was directed to the Criminal Appeal Act 1968, which provides the statutory foundation for the jurisdiction of the court.

Section 11(3) of the Criminal Appeal Act 1968 provides:

“On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may

(a)

quash any sentence or order which is the subject of the appeal; and

(b)

in place of it pass such sentence or make such order as they think appropriate … as the court below had power to pass or make when dealing with him for the offence; but the court shall so exercise their powers under this sub-section that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below.”

Section 29(4) of the 1968 Act provides:

“The term of any sentence passed by the Court of Appeal under section … 11 … of this Act shall, unless the court otherwise directs, begin to run from the time when it would have begun to run if passed in the proceedings from which the appeal lies.”

Mr Straw submitted that the effect of s.11, which created the jurisdiction to order a reduction of sentence on appeal from the Crown Court, proceeds in two stages. If for any reason it is not appropriate for the sentence to be upheld, then it must be quashed, and after it has been quashed, the Court of Appeal will decide the sentence which should replace the sentence which has been quashed. The conclusion must therefore be that the appellants were “sentenced” by the Court of Appeal.

It has long been understood that on the occasions when the Court of Appeal orders a reduction in sentence, it does so following a review of the decision in the Crown Court, and furthermore, that any reduction in sentence is in substitution for or, using the language of s.11(3)(b), in place of the sentence imposed by the Crown Court. It is perhaps worth noting that the Court of Appeal is not conducting a fresh sentencing decision, in which all the options available to the Crown Court are available to the Court of Appeal. On an appeal against sentence the court is expressly prohibited from making any order which might amount to a heavier penalty than that imposed by the Crown Court. Moreover, when allowing an appeal against sentence by a defendant whose sentence at the Crown Court was governed by the various provisions which relate to young offenders, the Court of Appeal approaches the decision as if the sentence continues to be subject to the same provisions which apply to a young offender even if, by the date of the hearing of the appeal, the appellant has become an adult.

In the Court of Appeal Criminal Division by D R Thompson and H W Wallaston(published in 1969 immediately after the enactment of the 1968 Criminal Appeal Act), the effect of sentence passed by the Court of Appeal was analysed in clear terms:

“Sentence passed by the Court of Appeal is in place of the sentence passed by the court below. Unless the Court of Appeal otherwise directs, the sentence begins to run from the time when it would have begun to run if passed by the court below. In effect the sentence is the sentence of the court below.”

The authors are responsible for this emphasis. Master Thompson held office for many years as the Registrar of Criminal Appeals and was an acknowledged master of the practice and procedure of the court. Mr Straw was unable to identify any decision of the court which might serve to undermine or cast doubt on these observations which, to the contrary, continue accurately to reflect the practice of the Court of Appeal and the understanding of its role. (See for example R v A and B [1999] 1 Cr. App. R(S) 52 at 56 and AG Ref: No. 55 of 2008 [2009] 2 Cr. App. R(S) 22.)

Mr Straw advanced a number of different considerations in support of his basic argument. In particular, he reminded us that the purpose of the provisions of the 2008 Act was to mitigate the effect of the dangerous offender provisions in the 2003 Act which had been both draconian and restrictive, and indeed created demands on resources which were not readily available. This demonstrated, so he contended, that the intention of Parliament was to broaden rather than restrict the scope of the early release provisions. All that may well be right, and indeed the amendments contained in the 2008 Act were broadly welcomed by the judiciary. Nevertheless the crucial statutory provision was contained in the Commencement Order which expressly provided that the relatively liberal provisions of the 2008 Act should not apply to those sentenced before it came into force. Their release would continue to be governed by the provisions of the 2003 Act.

Mr Straw sought to reinforce his argument by reference to the changes to the powers of the Court of Appeal to increase sentence upon reference by the Attorney General effected by s.46(2) of the 2008 Act. This process is not, of course, subject to the prohibition on any increase in sentence: its objective is to redress the unduly lenient sentence. In accordance with these provisions the court should not make any allowance for the fact that the person to whom it relates “is being sentenced for a second time”. This, Mr Straw argued, underlined that the process in the Court of Appeal both in relation to a reference by the Attorney General and an appeal against sentence by a defendant is a separate distinct sentence from the sentence in the Crown Court. The argument perhaps overlooks the fact that the statutory purpose was to address a level of uncertainty about the extent to which allowance might be made for what was originally described by Lord Lane CJ, when the unduly lenient sentencing regime was introduced, as “double jeopardy”. In short this meant that even if satisfied that the original sentence was unduly lenient, the court was entitled to take into account by way of mitigation that the defendant was being sentenced for a second time.

The question for decision is whether the appellants were “sentenced” under the dangerous offenders’ provisions in the 2003 Act when the amendments to it were brought into force. The short answer is that they were. They continued in force and governed the detention of the appellants until the moment when they were substituted by the sentence ordered in the Court of Appeal. The appeals against sentence, although successful on the grounds that the sentence was excessive, did not nullify the sentences imposed in the Crown Court. They simply replaced them. Accordingly the provisions in the 2008 Act were “of no effect” in the relation to them.

It is sometimes productive of confusion for issues relating to the proper construction of a statute to be addressed by reference to potential or perceived anomalies. It does however appear to be compelling that if Mr Straw were right then two young men sentenced as his clients were, on the same date but in different courts, for similar offences to those committed by these appellants who either chose not to appeal, or who appealed unsuccessfully, or whose successful appeals were concluded before the 2008 Act provisions came into effect on 14 July 2008, would remain subject to the more restrictive provisions relating to release than these appellants, whose successful appeals happened to be heard and decided after that date. That would produce significant unjust disparities, based entirely on accidents of listing and process.

My approach to the issues raised in this appeal is closely aligned to the reasoning in the Divisional Court. For my own part I entertain a reservation whether the references to the Sentencing Guidelines Council or Sentencing Council, helpful as an indication of sentencing practice, assist on the issue of statutory construction. Subject to that reservation, I would endorse the reasoning of the Divisional Court. In view of my conclusion, the observations of the Court of Appeal about the appellants becoming “entitled to release when they have served 4 years”, an issue which did not arise for decision at the hearing, were incorrect.

These appeals must be dismissed.